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Church & State

Seventy Years of Separation

Americans United Celebrates Seven Decades Of Challenges, Hard Work — And Success

The year was 1948, and the people of Dixon, N.M., were in need of some help.

Public schools in this remote rural hamlet had been handed over to a religious group – in this case, an order of Catholic nuns in full clerical garb – who were teaching children in a former parochial school festooned with sectarian symbols.

The nuns insisted that their instruction was non-sectarian, but some parents said it was impossible for youngsters to receive a secular education in such a religious setting. The two sides remained at loggerheads.

Thousands of miles away in Washington, D.C., a new organization had formed a year earlier to defend the separation of church and state and was looking for a case that could put it on the map. The organization provided financial support to the Dixon parents, lined up a volunteer attorney to assist and publicized the issue, helping to secure a ruling from the New Mexico Supreme Court that the arrangement was unconstitutional.

That organization, then known as Protestants and Other Americans United for Separation of Church and State, had just helped win an important court victory against what were then known as “captive schools.”

The practice of allowing religious groups to run public schools had been common in some rural areas, but it quickly ended in light of the Dixon ruling. The victory was so complete that today, many Americans aren’t even aware that “captive schools” once existed.

The incident was an early win for the organization that later became Americans United for Separation of Church and State. It wouldn’t be the last one.

Americans United celebrates its 70th anniversary this year. As such, it’s time to glance back on a storied history while looking ahead to a promising future.

The anniversary comes at a time of change for Americans United. The Rev. Barry W. Lynn, who has served as AU’s executive director since 1992, announced in March that he will retire at the end of the year. (See “Starting A New Chapter,” April 2017 Church & State.)

Lynn will be honored at a gala event in Washington, D.C., in Nov­ember, a celebration that will also mark AU’s seven decades. (For information on how to attend this event, see the ad on the back of this issue of Church & State.)

The origins of Americans United reach back to a U.S. Supreme Court decision issued on Feb. 10, 1947. On the surface, the case, Everson v. Board of Education, looked to be pretty straightforward: It dealt with the issue of government aid to religious schools. The state of New Jersey had a law that reimbursed parents for money they spent busing their children to private (mostly religious) schools. The practice was challenged, but the court ruled 5-4 it was not a violation of the First Amendment.

Although the high court upheld the aid, it also took pains to speak eloquently about the importance of church-state separation.

Observed Justice Hugo Black, “The ‘establishment of religion’ clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’”

To many observers, Everson was a curious ruling. A court majority spoke about the importance of church-state separation – but it also seemed to violate that principle by extending public support to religious schools. (The court majority justified its ruling by calling it a matter of public safety.)

Later that year, a coalition of leaders from religious and educational communities met in Chicago to decide how to respond to the ruling. Already lobbyists for some religious groups were pressing for more forms of tax aid in light of Everson, and members of the coalition wanted to make sure that door remained tightly shut.

They decided to form a national organization that would educate the American people about the importance of church-state separation and advocate for that principle in courts, state legislatures and Congress. The result was Americans United for Separation of Church and State. (Because the organization during its founding drew heavily from Protestant church­es, its original name referenced Prot­estants. But it was clear from the beginning that Americans of all faiths and none who supported church-state separation were welcome to join. By the mid-1960s, the “Protestants and Other” had been dropped. The name change was made official in 1972.)

AU’s founders were a mixed lot theologically and politically. Among them were Edwin McNeill Poteat, president of Colgate-Rochester Divinity School (who served as AU’s first president); Louie D. Newton, president of the Southern Baptist Convention; Joseph M. Dawson, executive secretary of the Baptist Joint Committee on Public Affairs; Elmer E. Rogers of the Supreme Council of Scottish Rite Masons; John A. Mackay, president of Princeton Theological Seminary; the Rev. G. Bromley Oxnam, a prominent Methodist bish­op; Carl E. Lundquist of the Lutheran Council; William A. Scarlett, Episcopal bish­op; Charl Ormond Williams of the National Education Association; Frank H. Yost of the Seventh-day Adventist Church; and the Rev. Clyde W. Taylor, secretary of the National Association of Evangelicals.

Nearly 20 years after that initial meeting, C. Stanley Lowell, longtime editor of Church & State, observed in his book, Embattled Wall, “The founders were a curious combination of liberals and fundamentalists, of Council of Churches and national and fraternal leaders. Clergymen were prominent in the deliberations. It was such a combination as might not have desired to be caught together under any possible set of circumstances. But to defend separation of church and state they did come together.”

AU's founders, shown here in a photo from late 1947, were a diverse theological lot.

The founders’ first order of business was to make the group’s presence known. In a pre-internet (and largely pre-television) age, that was a challenge. But the AU founders hit upon a good solution: They issued a document titled simply “A Manifesto” that outlined the importance of church-state separation and laid out a plan to defend it.

The Manifesto asserted that the new organization had a very specific goal: “Its single and only purpose is to assure the maintenance of the American principle of separation of church and state upon which the Federal Constitution guarantees religious liberty to all the people and all churches of this Republic.”

The Manifesto went on to say, “Congress and all State legislatures, and all executive and judiciary agencies of government must be warned that they are playing with fire when they play into the hands of any church which seeks, at any point, however marginal, to breach the wall that sharply separates church and state in this country. The principle of their separation is so firmly established in a long tradition as well as in the Constitution that any tampering with it will tend to light the fires of intolerance and fanaticism which our system of government is designed to prevent.”

The document listed eight “immediate objectives” that the organization would pursue. First up was a campaign of public education to “enlighten and mobilize public opinion in support of religious liberty as this monumental principle of democracy has been embodied and implemented in the Constitution by the separation of church and state.”

Other objectives included opposing laws that would give tax money to religious institutions, including religious schools; fighting “sectarian domination” of the public school system and opposing official U.S.-Vatican diplomatic ties that had been proposed by President Harry Truman.

The Manifesto also made it clear that the new organization would defend the public education system. “Next to the Constitution itself,” the document observed, “our public school system has been our strongest bulwark against the development of religious intolerance in our political life.” (The vow to defend public schools drew many educators to AU’s cause, a trend that continues today.)

The Manifesto, drafted during a meeting at a Methodist church in Chicago on Nov. 20, 1947, was written primarily by Charles Clayton Morrison, editor of Christian Century. A committee worked to edit and finalize it. Early in 1948, the Manifesto was released to the media.

The formation of the new organization was announced on the front page of The New York Times on Jan. 12, 1948. The unbylined piece was headlined, “New Body Demands Church Separation.”

The Times story noted that the new group had “proclaimed its appearance on the national scene today with a manifesto urging reaffirmation of the American principle of separation of church and state,” and that it sought the support of “religious and non-religious bodies.”

AU’s founders knew the organization would need a permanent home in the nation’s capital and a leader to oversee day-to-day operations. Borrowed office space in Washington, D.C., solved the first problem, but the second took a little more time. A nationwide search was launched, and in July 1948, Americans United announced that Dr. Glenn L. Archer would serve as executive director.

At the time, Archer was serving as dean of Washburn University Law School in Topeka, and was active in Republican Party politics. A dynamic figure known for his oratorical skills, Archer had considered a career in politics, perhaps as governor of Kan­sas or a U.S. senator. He put those dreams aside to move to Washington, D.C., and run Americans United, where he served as executive director until his retirement in 1976.

Archer, unlike the AU executive directors who followed him, was not an ordained member of the clergy. He did hold an “exhorter’s license” from the Methodist Church, meaning he was a lay preacher who could perform some of the functions of an ordained minister.

With leadership in place, AU began soliciting members, forming chapters (the first one was a state­wide unit in Georgia), building a legal team, hiring lobbyists and reaching out to the media. A few months prior to Archer’s arrival, a publication called Church and State Newsletter was issued to members. The first issue, just six pages long, was prepared on a typewriter and contained no art or images. The publication soon took on a more professional look. It was renamed Church & State in September 1952.

One of Archer’s first tasks was to help AU find a home and raise the funds to pay for it. He succeeded on both counts, and AU was soon ensconced in a brownstone building on Massachusetts Avenue in northwest Washington. Americans United remained there until 1969, when the organization purchased a building in Silver Spring, Md., a close-in D.C. suburb, to accommodate its growing staff. In 1994, AU’s Lynn moved the organization back to the nation’s capital. The current headquarters is on L Street, in the heart of downtown.

AU's staff poses outside the organization's then-national headquarters in Silver Spring, Md., in this photo from the early 1970s.

Much of AU’s work in the early years focused on the issue that had sparked the organization’s creation: opposition to plans to divert taxpayer funds to sectarian schools. Americans Uni­­ted was involved in each of the cases dealing with this issue that reached the Supreme Court, either by directly litigating them or by filing court briefs.

In 1971, the high court handed down a ruling in a seminal case called Lemon v. Kurtzman. In Lemon, the court struck down a variety of state programs designed to aid sectarian private schools. The victory in Lemon capped a period of extraordinary success in the courtroom for Americans United and its allies. In his 1976 book, The Wall of Separation: The Constitutional Politics of Church and State, University of Minnesota scholar Frank J. Sorauf analyzed 67 decisions by federal courts and concluded that Americans United, the ACLU and the American Jewish Con­gress were the three most influential organizations shaping church-state law in the 1951-1971 period.

Unfortunately, those victories were eroded when the Supreme Court became more conservative in the 1980s and early ’90s. In 2002, the court upheld private school vouchers in Zelman v. Simmons-Harris, a decision AU condemned as marking “a sad day for religious liberty and public education in America.” AU and allied groups have, however, managed to block voucher programs in some states citing language in state constitutions that bars the diversion of tax money to sectarian enterprises.

The 1960s were also a time of tumult over the issue of religion in public schools. The Supreme Court’s school prayer rulings of 1962 (Engel v. Vitale) and 1963 (Abington Township School District v. Schempp) were attacked by many conservative religious groups, and there were calls to amend the Constitution to restore official prayer and Bible reading to schools. Americans United worked hard to correct the record, reminding people that coercive, school-sponsored programs of religious worship have no place in a free country.

Several school prayer amendments were introduced in Congress in the 1960s and ’70s, but thanks to hard work by AU and other groups, all were defeated.

Taxpayer aid to religious schools and the role of religion in public schools occupied much of AU’s time in the 1950s, ’60s and ’70s, but plenty of other issues popped up as well. Even a casual glance at back issues of Church & State reveals an organization that was active on several fronts. Americans United opposed religiously based censorship of books, plays and films, lobbied to overturn laws restricting access to birth control and helped end mandatory Sunday-closing laws (also known as “blue laws”) in several states.

In the late 1970s, a seismic political shift occurred with the rise of the Moral Majority and other Religious Right groups. This avowedly theocratic movement expressed open hostility to separation of church and state and worked to elect Ronald Reagan to the presidency in 1980. Once in office, Reagan embraced many of the Religious Right’s positions, advocating for official school prayer and tuition tax credits (a form of vouchers).

Television preachers like Pat Rob­ertson attacked church-state separation as un-historical from national pulpits. Around the same time, the Southern Baptist Convention (SBC), which had helped found Americans United in the late ’40s, was taken over by fundamentalists. The SBC, which had traditionally supported church-state separation, began reversing its positions as it moved far to the right on social issues. (Many individual Southern Baptists remained supportive of the church-state wall and AU, however.)

But even as some denominational support for AU dipped, the organization found new allies in non-Christian, humanist and non-belief communities. Non-believers had always been a part of AU, but during the 1980s they achieved greater visibility, as their opposition to the Religious Right made them natural allies for AU. Jewish support for AU, which was present from the beginning, also grew during this period. Adherents of some nature-based faiths, such as Wicca and Paganism, also signed up.

The machinations of the Religious Right kept Americans United busy during the 1980s and ’90s. Groups like the Christian Coalition (founded by Robertson), the Family Research Council, Focus on the Family, Concerned Women for America, the Traditional Values Coalition, Alliance Defense Fund (later known as Alliance Defending Freedom) and others lobbied Congress and state legislatures for ultra-conservative social policies and worked in courts to erode church-state separation.

Issues that had been dormant, such as censorship of books in public schools and libraries, as well as creationism, were given new life thanks to Religious Right activism. In 1987, the Supreme Court struck down a Loui­si­ana law that mandated “balanced treatment” between evolution and creationism in public schools in the Edwards v. Aguillard case. Americans United, joined by the National Council of Churches and the American Jewish Committee, filed a brief asking the high court to strike down the law.

The issue refused to go away, though. Advocates of creationism kept retooling it. In the ’90s, they pushed the “theory of abrupt appearance” and “evidence against evolution.” Eventually, they hit upon a watered-down form of creationism called “intelligent design” (ID).

AU opposed each of these schemes, calling them new forms of the same old creationism. After a school board in Dover, Pa., added ID to its curriculum, Americans United joined forces with the ACLU, the National Center for Science Education and the law firm Pepper Hamilton and sued. The groups won a landmark ruling in 2005 in Kitzmiller v. Dover declaring ID unconstitutional in public schools.

In the mid-1990s, AU had to fend off a new threat: a so-called “Religious Freedom Amendment” that would have removed separation of church and state from the First Amendment. Cooked up by Newt Gingrich after Republicans took control of the House of Representatives in 1994, the amendment was backed by an array of Religious Right groups, many of which had a hand in helping to draft it.

Former U.S. Rep. Ernest Istook (R-Okla.) was given the task of spearheading the push for the amendment. After years of jockeying, the amendment received a vote in the House on June 4, 1998. It received a simple majority of 224-203, but fell 61 votes shy of the two-thirds super-majority required to pass a constitutional amendment.

Church politicking also became a big issue in the 1990s. Days before the 1992 election, a fundamentalist church near Binghamton, N.Y., placed a full-page ad in USA Today advising people not to vote for Democratic candidate Bill Clinton. AU spotted the ad and sent a copy to the Internal Revenue Service (IRS), noting that federal law doesn’t permit tax-exempt organizations to intervene in elections by endorsing or opposing candidates for public office.

The IRS pulled the Church at Pierce Creek’s tax exemption, and attempts in court by Robertson’s American Center for Law and Justice to get it back failed. Four years later, AU launched Project Fair Play to monitor violations of the law by houses of worship and report egregious offenders to the IRS. AU’s work in this area put this issue on the national radar screen.

The Clinton years also saw the rise of a new threat called “charitable choice,” a fancy term for tax funding of social service programs run by houses of worship. The concept really took off under President George W. Bush, who renamed it the “faith-based initiative.”

AU sounded the alarm, pointing out that sectarian programs should not be funded with public money. The group backed up that view in court and in June 2006 won an important victory in Iowa, which was forced to terminate a prison program called InnerChange that extended preferential treatment to inmates who were willing to embrace fundamentalist Christianity.

Religious Right groups and their allies in the political world also pressed for literal unions of church and state in some cases, demanding the display of religious symbols at the seat of government.

In 2001, AU joined with the ACLU and the Southern Poverty Law Center to file one of its most high-profile cases: a challenge to Alabama Sup­reme Court Justice Roy Moore, who had erected a two-and-a-half-ton Ten Commandments monument at the Judicial Building in Montgomery. When he refused to remove it, the groups took Moore to court.

AU and its allies won the Glassroth v. Moore case, but things took a strange turn when Moore refused to remove the monument. For his defiance of a federal court order, he was removed from the state high court bench. But in 2012, Moore got reelected to his old job and once again had to be removed from the court after he tried to undermine a federal court ruling on marriage equality.

Unfortunately, not all of AU’s challenges to government’s use of religion were successful. In 2014, an Americans United-sponsored case dealing with prayers before meetings of local government reached the Supreme Court. The high court, ruling 5-4 in Greece v. Galloway, found it permissible for the city of Greece, N.Y., to open its meetings with prayers that were almost always Christian in nature. The ruling did, however, state that communities should strive for diversity, and after the ruling, AU began urging towns to honor that by allowing non-Christians and secularists to offer invocations.

Religious Right groups had targeted the LGBTQ community for vicious attacks throughout the 1980s. As the issue of gay rights became more prominent, AU pointed out that many of the attempts to deny LGBTQ rights were anchored in fundamentalist theology.

In recent years, AU has worked to defend the LGBTQ community from attempts by Religious Right groups to deny them basic rights, such as the right to marry. When the marriage equality case of Obergefell v. Hodges reached the Supreme Court in 2015, AU filed a legal brief arguing that the Religious Right’s arguments against marriage equality were religious in nature and should have no legal effect.

In the wake of that ruling, which upheld marriage equality, far-right fundamentalist groups and their political allies began arguing that “religious freedom” should give people the right to refuse to serve LGBTQ Americans. While AU has always supported meaningful religious freedom, it asserted that this far-right fundamentalist version of “religious freedom” was a perversion of that important concept and launched its Protect Thy Neighbor project to ensure that religion would not be used to harm people, discriminate against them or curtail their lawful rights.

Looking ahead, Lynn said he knows Americans United will face numerous challenges during the Trump presidency, but he’s confident the organization will meet them.

“Anyone who looks at the history of this organization learns one thing very quickly: defense of the separation of church and state is an ongoing project that requires eternal vigilance,” Lynn asserted. “Thankfully, Americans United’s long track record of success over the past 70 years shows that we have the experience to get the job done.”